California OAH special education order · August 23, 2022
Order Following Prehearing Conference and Granting Request for Continuance
OAH Case No. 2022050746, 2022060059 · ALJ Cynthia Fritz
OAH denied Student's request for sanctions over Palo Alto's counsel appearing by phone instead of video, but ordered video appearance at the next prehearing conference; a short continuance was granted pending settlement signatures.
Summary
Student asked for sanctions because Palo Alto's counsel joined the prehearing conference by phone instead of video. Student's counsel reads lips, and Palo Alto's lead counsel knew this. The ALJ denied sanctions because the attorney who appeared was filling in, was unaware of the need, and offered to switch to video. The ALJ ordered counsel to appear by video at the August 26, 2022 prehearing conference. The ALJ also granted Palo Alto's request for a short continuance for good cause, because both sides had agreed to settlement terms and Parents had already signed. The prehearing conference was reset to August 26, 2022, and the hearing to September 7 and 8, 2022.
Why it matters
When a participant needs a disability accommodation, such as video appearances for a lip-reading attorney, OAH may order it going forward. A first, unintentional lapse by substitute counsel is unlikely to lead to sanctions. A settlement that is agreed but not yet fully signed can be good cause for a brief continuance.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code § 56502, subd. (f)
- Ed. Code § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE CONSOLIDATED MATTERS INVOLVING:
PALO ALTO UNIFIED SCHOOL DISTRICT,
and
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2022050746
OAH CASE NUMBER 2022060059
ORDER FOLLOWING PREHEARING CONFERENCE AND
GRANTING REQUEST FOR CONTINUANCE
AUGUST 23, 2022
On August 22, 2022, Administrative Law Judge Cynthia Fritz, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.
Attorney Shira Mowlem appeared on behalf of Student. Attorney Lindsay Steinmetz appeared on behalf of Palo Alto Unified School District, called Palo Alto. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:
MOTIONS
1. PALO ALTO UNIFIED SCHOOL DISTRICT’S REQUEST FOR A
CONTINUANCE.
Palo Alto requested a short continuance because the parties have agreed to all terms of the settlement agreement and are awaiting Palo Alto’s signatures to execute the agreement. Student confirmed that Parents have already signed the settlement agreement and the parties are awaiting Palo Alto’s signatures. Palo Alto estimated that that the signatures will be obtained in the next day. Student initially objected to the continuance, but after some discussion, agreed to a short continuance.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd.
(f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored. Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness, or other excusable circumstances; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing.
(See Cal. Rules of Court, rule 3.1332(c).) OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance; and any other relevant fact or circumstance. (See Cal. Rules of Court, rule 3.1332(d).)
Here, Palo Alto’s counsel established good cause for a short continuance in this matter. Accordingly, Palo Alto’s request for a continuance is granted. All dates are vacated. The prehearing conference and due process hearing are set as follows:
Prehearing Conference: August 26, 2022, at 3:00 PM Due Process Hearing: September 7 and 8, 2022.
2. STUDENT’S REQUEST FOR SANCTIONS
Student requested sanctions in this matter because Palo Alto’s counsel appeared by phone and not by video. Student’s counsel explained that Palo Alto’s lead counsel in this matter is aware that Student’s counsel reads lips and needs participants to appear by video. Palo Alto’s counsel represented that she is filling in for lead counsel today and was unaware but could arrange to appear by video in 30 minutes.
Student’s request for sanctions is denied. However, the undersigned ordered counsel to appear by video at the August 26, 2022 prehearing conference.
IT IS SO ORDERED.
Cynthia Fritz Administrative Law Judge Office of Administrative Hearings